Kenya Ports Authority v Nightshade Properties Limited & 4 others
The bottom line
#Kenya's Court of Appeal paused eviction and contempt proceedings against the Lamu Port, ruling that public infrastructure worth billions cannot be undone while an appeal is pending.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has satisfied the twin principles for grant of stay of proceedings and stay of execution pending appeal - arguability of the appeal and whether the appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The appeal was arguable because it was debatable whether the remedy for compulsory acquisition lies in compensation rather than vacant possession, and substantial public funds had been expended on the project.
The court accepted that once the ELC found the land was compulsorily acquired for the LAPSSET public purpose, whether the 1st Respondent's remedy lay in compensation or reinstatement was an arguable point. The scale of expenditure on the port and its national importance also weighed in favour of arguability and public interest.
Whether the appeal would be rendered nugatory
Execution would be irreversible - the Applicant could never recoup the enormous investment in the port - so the appeal would be rendered nugatory if stay was denied.
The court found the developments on the suit property were enormous, involving great time and money, and that if eviction took place the investment would be irrecoverable even on a successful appeal. Irreversibility and the public interest in an operational national and international port facility satisfied the nugatory principle.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
- Where execution would destroy massive public infrastructure whose value cannot be recouped, the appeal is rendered nugatory and stay will issue in the public interest.
Court orders
#- 1.Pending the hearing and determination of the appeal, a stay of execution of the judgment and consequent orders of the ELC dated and delivered on 23rd March 2021
- 2.Pending the hearing and determination of the appeal, a stay of the contempt proceedings commenced by way of the 1st Respondent's Notice of Motion dated 18th June 2021 filed before the Superior Court against the Managing Director of the Appellant
- 3.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Malindi Environment and Land Court
- Petition Number 33 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010; Sections 3A and 3B of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have come to the conclusion that the Applicant has satisfied the twin principles for grant of stay of proceedings pending hearing and determination of the appeal.
THAT there shall be a stay of execution of the judgment and consequent orders of the ELC dated and delivered on 23rd March 2021; and,
THAT there shall be an order of stay of the contempt proceedings commenced by way of the 1st Respondent's Notice of Motion dated 18th June 2021 filed before the Superior Court against the Managing Director of the Appellant;
Costs of this motion shall be in the appeal. It is so ordered.
We are persuaded that it will be against public interest if access to the facility is curtailed.
Issues in the judgment
#Conflicting expenditure figures for the same project
Ruling states expenditure 'in excess of Kshs. 18 billion' contradicting the affidavit figure of under Kshs 1 billion
Possession date inconsistency: 2015 in background versus October 2016 in submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Nightshade Properties Limited & 4 others", Case Analysis (2022). Civil Appeal (Application) E025 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/385/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.